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Why am I evil? Well, I'm not, but that's the perception of all of us in HR. Need to fire someone? Come to HR. Need to explain to someone why, even after working their rear end off all year, that their annual increase is 2.7%? Come to HR. Need to come up with new mountains of paperwork? Come to HR. So, come join me on the Evil Side. Oh, and send me your HR questions.

Sunday, March 07, 2010

Laid Off

An inlaw of mine is almost 65 years old, and has worked as a project manager at an engineering firm for 35 years. Last month he was laid off... with four weeks of severance. Because he thinks a) since 4 weeks is what's in the company bylaws and b) that (based on no actual input from the company that I can see) he might get contract work for them one day, he doesn't want to talk to a lawyer. I say the worst case scenario is he doesn't get four weeks of severance, and best case can be a whole lot better.

Did I mention that he just came back from a 7 month leave in October to recover from surgery? Evil HR Lady, he has no college degree, did not become an engineer, has health issues, and lives in the economic cesspool that is greater Detroit. Am I being overly pessimistic about his prospects, or just pragmatic? In your opinion do we need to gently bring him around to the idea that he might as well start a legal negotiation, because he's got a very tiny realistic shot at a professional future, and needs something to live off of? I suspect part of the reason he's so reluctant to do anything is because it would mean acknowledging how little he was valued by that company, but the situation is what it is, and I say no sense pretending he was treated well, or will be in the future with fantasy contract work. And he says it was a layoff, but he was the only one let go at that time. Others have been let go previously.

I'm a big fan of severance. It keeps things civil and your terminated employees from initiating lawsuits. Note that I said initiating lawsuits, not from winning lawsuits, because, quite frankly termination lawsuits are hard for a former employee to win.

You see, you can terminate anyone at any time for any legal reason. (Assuming no contracts and at will employment here.) What you can't do is terminate someone for illegal reasons. In your inlaw's case you may say, "Look he was terminated because he's almost 65." Yes, that is illegal. You may not terminate someone because he is 64.5 years old. But, you certainly can terminate someone who is 64.5 years old, provided that his age is not the reason.

But, your question is should he file a lawsuit, right? Well, I'll be honest with you--there is a probability greater than zero that you could win and still end up with less money. Why? Because the lawyer has to be paid. If the company bylaws stipulate 4 weeks of severance and they offered 4 weeks of severance and (and this is key) they offered 4 weeks of severance to other people they have terminated, then in order to win anything, he's going to have to prove illegal discrimination.

Now, I would tell a company that they need to be extra careful because the burden generally falls on them to prove that they didn't illegally terminate someone. But, that advice flips when you are talking about filing the lawsuit. You know who wins in a lawsuit? Lawyers. Yep. Everyone else is dragged through years (literally) of tedious, painful, litigation.

You don't want to go to court. There is a real possibility that he could get more money if he simply threatens (or, better yet, has a lawyer threaten--some of them will write a letter for you for a few hundred dollars). But, there is also a possibility that no future consulting work will be the consequence of that lawsuit.

So, here is what I would do. 1. Ask for a copy of the Summary Plan Description. If they've let multiple people go, there should be one. (He should have a copy already.) It will state how severance is calculated. If his is calculated as per the plan, then that is that. 2. Call up an employment lawyer and ask for a short consultation (confirm the fee beforehand). Don't call up one of those "were you hurt in an accident? Let's sue!" lawyers because they won't know what to do. Ask the lawyer's advice on the potential age discrimination claim. 3. If the lawyer thinks there is a valid claim, have her write a letter asking for a reasonable increase in severance. 4. Then let it go. Take the 4 weeks (or whatever additional severance is offered) and get on with life.

Employment lawsuits are not kind where you get million dollar payouts. The psychological toll of such a thing is not worth the money.

9 comments:

Is there any evidence he was terminated for his age? Because it's not illegal to treat people like crap. It's only illegal if they treat ONLY the old people (or Mexicans, or women, or whatever) like crap. If they treat everyone like crap, it's legal. There has to be discrimination.

Your letter doesn't mention any discrimination at all, so that's an important thing to consider. In fact, if they gave him a seven-month leave, they went WAY beyond what the law requires. That would be pretty strong evidence that they *didn't* discriminate on the basis of his age, and that they actually bent over backwards for him.

That said, it sucks. I think you're right that it's going to be tough for him to find work. But as EHRM points out, lawyers are expensive, and his dim prospects are all the more reason not to give your money to them. He's going to need that money.

Apparently they have kept younger folks around, hence my thought. I'm with EHRL all the way about winning a suit being a long shot, but that trying to negotiate something better with a lawyer might be worth trying.

I've been tracking this whole age discrimination issue for Personnel Concepts for some time now, and the recent Supreme Court "but-for" decision makes it extremely unlikely that anyone could prevail against an employer unless the employer blatantly fired that someone solely because of age.

I read this over and over, and NOTHING in the inlaws message implies there was any illegal activity on the part of the employer at all. The gist I get is that he/she is suggesting a lawsuit NOT based on an actual illegal incident of discrimination, but just because he/she doesn't see any other options for their relative to pick up some cash.That is NOT what the legal system is for! The situation stinks. The economy in Detroit is awful. Many are suffering. But filing a lawsuit for the sake of filing a lawsuit clogs up the system for those who ACTUALLY HAVE A CLAIM. Filing a lawsuit in a "whattheheck" attempt to get some free money is SO wrong. The employer did not break the law. The inlaw seems to have a decent enough relationship where he feels he may continue to get work from them IF it is available. That's a BIG if. But all indicators are that this termination was about the economy and it's effect on the company. Not on the employee's age or medical issues.Grrrrrr....I hate frivolous lawsuits.

My only thought about this is why isn’t this guy retiring at his age? I’m surprised that his employer didn’t offer early retirement instead of a layoff. You’d think that after 35 years, he’d have quite a pension saved up. Perhaps he should negotiate this instead of severance. If he’s “unemployed” instead of “retired,” the employer also has to pay unemployment benefits (probably for quite a while, given that this is Detroit). It’d work out better for everyone to make this a “retirement” instead of a “layoff.” They obviously like the guy if they gave him seven months off for his health, so it probably won’t even need a scary letter from a lawyer.

I agree with the others that a lawsuit is a bad idea. You said yourself that he never got an education or any advanced skills in his 35 years there. The employer just has to say that they’re laying off anyone without X skill set as a cost cutting measure, because employees with X are more productive. Oh, and they took care of the guy for decades even when he was sick, so it’s not personal. Case dismissed. Now he lost severance and unemployment benefits, and still has to pay that lawyer.

There is nothing wrong with asking for more severance. Most large companies have a set amount per years of service, and it wouldn't occur to them to offer more. It probably doesn't occur to employees to ask for it, either, given the shock of what they're going through at the time. But it doesn't hurt anything to ask. Call it an offset for the cost of benefits. Call it an offset for the loss of retirement income. Just ask if there is a chance that severance could be paid for 8 weeks, rather than 4, or whatever he's wanting to accept until this potential contract work comes through. Given his age, they may be quite willing to increase the severance in exchange for a signed release where he promises not to sue them.

However, in my opinion, when there is a fair severance offer on the table and no hint of any wrongdoing from the company, there is something wrong with having a lawyer send a letter. This puts the company on notice that this guy is ready to sue. That will eliminate any chance of extra severance from a sympathetic manager/HR team. All it does is delay the process of getting any additional money by potentially several years, and if it does come, the attorney gets 30-40% of the chunk.

4 weeks severance + 26(?) weeks unemployment + SS benefits + Medicare eligible = way more money than I'm expecting to get at age 65. This guy should have already been planning to retire at some point, right? Or how much longer was he planning to work?

As others have said, there is nothing in the original letter that indicates that the in-law was discriminated against. The employee could have been let go for any number of reasons (bad economoy, poor performance, etc.). For all we know, the 4 weeks of severance could be a very generous offer.

I am not a lawyer, but having attended EEOC training events, and knowing people who have worked there -

If the in-law was discriminated against (can't tell from the letter), rather than consult a lawyer, he should file a complaint with the EEOC (and he has to do this within 180 days of being laid off).

The EEOC will investigate and determine if any laws were violated. This is free, they often will sue on behalf of the employee to recover back pay, forward pay, and reinstate them (which, again is free).

There is a very very slim chance of the in-law getting hired as a consultant. If the in-law was discriminated against (again, can't tell from the letter) then he needs to worry about recovering back pay and forward pay and/or reinstatement.

I'm just putting this out there as an alternate to the "lawyers are expensive" theme that was running through this letter. If federal law was violated, then there are some clear and free steps that need to be taken.

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